Sibanyoni case: Decision to set aside contempt conviction against state prosecutor welcomed

Advocate Mkhuseli Ntaba, a state prosecutor with the South African Society of Advocates and Prosecutors of South Africa (SSAPSA), has been relieved of his contempt conviction and arrest warrant, following a decision by the Mpumalanga High Court. Ntaba had failed to appear in Kwaggafontein Magistrate’s Court on May 18, in connection with bail proceedings involving controversial taxi bosses Joe "Ferreri" Sibanyoni, Bafana "King of the sky" Sindane and two others.

These four individuals are accused of extortion and money laundering over allegations that they demanded over R2.2 million in protection fees from a mining businessman.

The decision to set aside Ntaba's conviction followed a controversial bail hearing in which former Chief Magistrate Tuletu Tonjeni dismissed the extortion case against the accused. The matter was later re-enrolled at the Delmas Magistrate’s Court, where the suspects were granted bail of R70,000 each. SSAPSA secretary Faith Nobele welcomed the judgment, noting that it vindicated the organization's position that a public prosecutor's conviction in such circumstances has no legal basis.

The ruling also protects the independence of the prosecution, in line with the doctrine of separation of powers, and endorses the public prosecutor's mandate to prosecute without fear, favor, or prejudice.

The high court found that Magistrate Tonjeni committed a gross irregularity by summarily convicting Ntaba of contempt while he was absent from court. The magistrate had used the wrong legal mechanism to deal with Ntaba's absence, as section 108(1) of the Magistrates’ Courts Act addresses contempt committed in the presence of the court.

The court also noted that the evidence did not establish that Ntaba had deliberately disobeyed the court order, finding that Tonjeni's decision to issue the warrant was based on the magistrate's pre-existing views of the prosecutor's character. The National Director of Public Prosecutions, Advocate Andy Mothibi, affirmed that the NPA will continue to challenge any legally incorrect decisions to ensure procedural fairness and judicial accountability.